<\/p>\n4. Final Functionally complete February 1, 1997 [**]
\n prototype final prototype
\n Software version of Software<\/p>\n
5. Complete Revised Beta version April 15, 1997 [**]
\n revised Beta of Software
\n version of
\n Software
\n (release
\n candidate 1)<\/p>\n
6. Complete Commercial release June 1, 1997 [**]
\n commercial version of Software
\n release version
\n of Software<\/p>\n
<\/c><\/c><\/c><\/s><\/table>\n
5. Special Terms and Conditions.<\/p>\n
It is understood that the above Schedule contemplates Software changes
\n as a result of potential customer and other information obtained as a
\n result of demonstration of the Software at COMDEX. If the parties agree
\n that these changes are sufficiently significant to cause a change in
\n the Schedule for Completion of Milestones 4, 5, and 6, then the parties
\n will agree on new dates for those milestones.<\/p>\n
-19-<\/p>\n
20
\n EXHIBIT C<\/p>\n
FORM OF DEVELOPMENT COSTS REPORT<\/p>\n
A. Direct Expenses<\/p>\n
1. Labor<\/p>\n
Name Rate Hours Total
\n —- —- —– —–<\/p>\n
2. Direct material costs<\/p>\n
Item Amount
\n —- ——<\/p>\n
B. Overhead Expenses<\/p>\n
Overhead expenses will be determined by taking the total
\nnumber of salary dollars allocated to the Development Task, dividing that by the
\ntotal number of salary dollars spent by the department(s) involved in the
\nDevelopment Task, and applying the resulting percentage to the total overhead
\ncost attributed to those department(s). Dragon Systems will provide detailed
\nexpense summaries showing department spending for each month.<\/p>\n
-20-<\/p>\n
21
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
EXHIBIT D<\/p>\n
SOFTWARE SUPPORT<\/p>\n
Seagate will be responsible for all direct telephone support of its
\nSoftware customers. Dragon Systems will provide to Seagate all second line,
\nbackup support, for the Software, during those hours when Dragon System makes
\nsuch support available to its customers (but in any event at least 9:00 a.m. –
\n5:00 p.m. eastern time), to enable Seagate to do so. If Seagate is unable,
\nnotwithstanding its diligent, reasonable best efforts, to resolve any particular
\ncustomer Software problem, it shall be entitled to require direct contact for
\nthat problem between Dragon Systems and the customer for direct resolution by
\nDragon Systems.<\/p>\n
Dragon Systems will use its diligent, reasonable best efforts to solve
\neach problem presented by Seagate within [**], provided that if a problem
\nreveals a Software error which requires program coding modifications, Dragon
\nSystems will use its diligent, reasonable best efforts to provide a correction
\nor suitable workaround within [**].<\/p>\n
-21-<\/p>\n
22
\n EXHIBIT E<\/p>\n
FORM OF SOURCE CODE ESCROW AGREEMENT<\/p>\n
(ATTACHED)<\/p>\n
-22-<\/p>\n
23
\n ESCROW AGREEMENT<\/p>\n
This Escrow Agreement is entered into this 28th day of June, 1996,
\nbetween and among Seagate Technology, Inc. (hereinafter called “Seagate”), a
\nCalifornia corporation with its principal place of business at 920 Disc Drive,
\nScotts Valley, California 95066; Dragon Systems, Inc., (hereinafter called
\n“Dragon Systems”), a Delaware corporation, with its principal place of business
\nat 320 Nevada Street, Newton, Massachusetts 02160; and the “Escrow Agent” set
\nforth at the end of this Agreement.<\/p>\n
WHEREAS, Dragon Systems and Seagate have entered into a Software
\nDevelopment and License Agreement dated June 28, 1996 (the “License Agreement”),
\nwhereby Seagate is authorized to reproduce and distribute, in object code form,
\nthe Software (as defined in the License Agreement);<\/p>\n
WHEREAS, Dragon Systems desires to provide assurance to Seagate that,
\nin the event of certain conditions specified in the License Agreement, access to
\nthe source codes for the Software, and related documentation, as specified in
\nExhibit 1 hereto (the “Escrow Materials”) may be obtained for the purpose of
\nproviding maintenance, support, improvement, enhancement, and other modification
\nof or addition to the Software;<\/p>\n
WHEREAS, Dragon Systems desires to enter into an escrow arrangement
\nwith Seagate to provide for the deposit of the Escrow Materials to be held by
\nEscrow Agent pursuant to all of the terms and conditions of this Agreement; and<\/p>\n
WHEREAS, the Escrow Agent is willing to act as escrow agent for Dragon
\nSystems and Seagate on the terms and conditions hereinafter set forth;<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants, agreements
\nand conditions set forth herein, the parties agree as follows:<\/p>\n
1. Appointment. Dragon Systems and Seagate hereby appoint Escrow
\nAgent as the escrow holder of the Escrow Materials under this Escrow Agreement,
\nand the Escrow Agent accepts such appointment on the terms and conditions set
\nforth in this Escrow Agreement.<\/p>\n
2. Deposit of Escrow Materials. Dragon Systems agrees to deposit with
\nthe Escrow Agent one copy of the Escrow Materials within thirty (30) days after
\nthe date of this Agreement. Dragon Systems agrees to deposit updated versions,
\nif any, of the Escrow Materials [STRIKE-THROUGH TEXT]upon completion of any new
\nRevisions, Upgrades, etc \\s\\ JKB \\s\\SL. Escrow Agent shall hold and dispose of
\nthe Escrow Materials only in accordance with the terms of this Escrow Agreement.<\/p>\n
24
\n 3. Transfer of Copy Title. Title to the physical Escrow Materials shall
\nvest in the Escrow Agent when material constituting the Escrow Materials comes
\ninto possession of the Escrow Agent. The Escrow Agent shall have no rights with
\nrespect to the intellectual property embodied in the Escrow Materials and shall
\nhave no right to use the Escrow Materials except to hold and dispose of the
\nEscrow Materials as set forth herein.<\/p>\n
4. Purpose. The Escrow Materials shall constitute a reserve to be made
\navailable to Seagate, under the terms of this Escrow Agreement, only upon the
\noccurrence of one of the release conditions set forth in Section 4.5 of the
\nLicense Agreement, i.e., in the event (i) Dragon Systems dissolves or
\nliquidates, or takes any corporate or other action to achieve dissolution or
\nliquidation, or Dragon Systems ceases to conduct business in the normal course,
\nor (ii) both (A) Dragons Systems is a debtor in a bankruptcy proceeding or other
\nproceeding for the general settlement of its debts, or a receiver or other
\nofficial is appointed for all or substantially all of Dragon Systems’ assets, or
\nDragon Systems makes a general assignment for the benefit of creditors, and (B)
\nDragon Systems is unable to perform its obligations pursuant to Section 8 of the
\nLicense Agreement.<\/p>\n
5. Escrow Release. Subject to Sections 6, 7, and 8, the Escrow Agent
\nshall promptly, release and deliver the Escrow Materials to Seagate following
\nthe receipt of written authorization, but not sooner than sixteen (16) days
\nfollowing the date of such notice, from an officer of Seagate certifying that
\nSeagate is entitled to the Escrow Materials (the “Notice”) pursuant to Section 4
\nabove, which is not disputed by Dragon Systems in accordance with Section 6
\nbelow. Seagate shall concurrently provide a copy of the Notice to Dragon
\nSystems.<\/p>\n
6. Disputed Notice. If Dragon Systems disputes the existence of the
\nconditions upon which the Notice is based, then Dragon Systems shall, within
\nfifteen (15) days following its receipt of the Notice, submit a “Counternotice”
\nto the Escrow Agent explaining the basis for its dispute, with a concurrent copy
\nto Seagate. If the Counternotice is received by the Escrow Agent and Seagate
\nbefore the close of business on the fifteenth (15th) day following receipt of
\nthe Notice by Dragon Systems (or, if the fifteenth day is not a Seagate business
\nday, the first Seagate business day thereafter), then the Escrow Agent shall
\nwithhold delivery of the Escrow Materials pending receipt of (a) a decision
\nevidencing the outcome of the arbitration provided for in Section 7 below, or
\n(b) other written instructions signed by both Seagate and Dragon Systems. Upon
\nreceipt of said decision or other instructions, the Escrow Agent shall deliver a
\ncopy of the Escrow Materials only in accordance with the decision or
\ninstructions.<\/p>\n
-2-<\/p>\n
25
\n 7. Arbitration of Disputed Notice. Dragon Systems and Seagate agree
\nthat, if the Counternotice is given by Dragon Systems pursuant to Section 6
\nabove, then Seagate and Dragon Systems shall submit to the jurisdiction of the
\nAmerican Arbitration Association to resolve the dispute promptly and shall
\ncommence the hearing before a Board of Arbitrators (the “Board”) in San Jose,
\nCalifornia, within thirty (30) days following receipt of the Counternotice by
\nthe Escrow Agent. The Board shall consist of three (3) members selected by the
\nAmerican Arbitration Association. The sole question before the Board shall be
\nwhether there existed, at the time Seagate transmitted the Notice to the Escrow
\nAgent under Section 5 above, any of the conditions specified in Section 4. This
\narbitration shall be governed by the then-current rules of the American
\nArbitration Association. The parties agree that the decision of the Board shall
\nbe final and binding and that this decision shall be immediately delivered to
\nthe parties to the arbitration and to the Escrow Agent. If the Board finds that
\nthe Notice was properly given by Seagate on the basis of the existence of a
\ncondition specified in Section 4 above, then the Escrow Agent shall promptly
\ndeliver the Escrow Materials to Seagate. If the Board finds to the contrary,
\nthen the Escrow Agent shall not release the Escrow Materials. All fees and
\ncharges by the American Arbitration Association shall be paid by the
\nnonprevailing party in the arbitration; each party, however, shall be
\nresponsible for the payment of all fees and expenses connected with the
\npresentation of its respective case.<\/p>\n
8. Termination. This Escrow Agreement and the escrow established
\npursuant to this Escrow Agreement shall terminate upon (a) notice of such
\ntermination by Seagate, or (b) termination of Seagate’s Software license
\npursuant to the License Agreement, and all materials comprising the Escrow
\nMaterials, and title thereto, shall thereupon be returned to Dragon Systems.<\/p>\n
9. Notices.<\/p>\n
9.1 It is understood that the Escrow Agent will incur no
\nliability for acting upon any instruction, notice, direction or other document
\nbelieved by it in good faith to be genuine and to have been made, signed, sent
\nor presented by the person or persons authorized to perform such act under the
\nterms of this Escrow Agreement.<\/p>\n
9.2 Each Notice, Counternotice, and all other notices,
\ninstructions, deliveries and other communications required or permitted to be
\ngiven hereunder or necessary or convenient in connection herewith shall be in
\nwriting and shall be deemed to have been given and received when personally
\ndelivered (by overnight delivery or courier service or otherwise), when sent by
\ntelecopy, or two (2) days after mailing if mailed by registered or certified
\nmail, return receipt requested, as follows (provided that notice of change of
\naddress shall be deemed given only when actually received):<\/p>\n
-3-<\/p>\n
26
\nTo Escrow Agent: To the address set forth at the end of this
\n Escrow Agreement, and to the attention of
\n the person signing this Escrow Agreement on
\n behalf of Escrow Agent.<\/p>\n
To Dragon Systems: To the address first set forth above.<\/p>\n
To Seagate: To the address first set forth above.<\/p>\n
or to such other name or address as the Escrow Agent, Dragon Systems or
\nSeagate, as the case may be, shall designate by notice to the other party hereto
\nin the manner specified in this section.<\/p>\n
10. Liability of Escrow Agent. The duties and obligations of the Escrow
\nAgent shall be determined solely by the express provisions of this Escrow
\nAgreement, and the Escrow Agent shall not be liable except for the performance
\nof such duties and obligations as are specifically set forth in this Escrow
\nAgreement. In the event of any controversy hereunder or with respect to any
\nquestions as to the construction of this Escrow Agreement or any action to be
\ntaken by the Escrow Agent, the Escrow Agent may, at its expense, consult with
\ncounsel selected and employed by it, and the Escrow Agent shall incur no
\nliability for any action taken or suffered in good faith in accordance with the
\nopinion of such counsel. The Escrow Agent shall not be responsible in any manner
\nwhatsoever for any failure or inability of Dragon Systems, Seagate, or for
\nanyone else, to perform or comply with any of the provisions of this Escrow
\nAgreement.<\/p>\n
11. Governing Law; Forum Selection. This Escrow Agreement shall be
\ngoverned by the laws of the State of California, without reference to conflict
\nof laws principles. All disputes arising out of this Agreement, other than the
\narbitration pursuant to Section 7, will be subject to the exclusive jurisdiction
\nand venue of the California state courts (or, if there is exclusive federal
\njurisdiction, the United States District Court for the Northern District of
\nCalifornia), and the parties consent to the personal and exclusive jurisdiction
\nof these courts.<\/p>\n
12. Entire Agreement. This Escrow Agreement sets forth the entire
\nunderstanding of the parties hereto with respect to the subject matter hereof
\nand cannot be changed, modified, or terminated orally.<\/p>\n
13. Validity. No action taken by the Escrow Agent in accordance with
\nthe terms and provisions hereof shall be deemed to constitute a representation
\nof the Escrow Agent as to the validity or value of any documents or instructions
\nheld by, or delivered to, it.<\/p>\n
-4-<\/p>\n
27
\n 14. Resignation\/Replacement.<\/p>\n
14.1 Upon sixty (60) days’ prior written notice given to
\nDragon Systems and Seagate, the Escrow Agent may resign. Within fifteen (15)
\ndays after the giving of such notice, Dragon Systems and Seagate shall mutually
\ndesignate a successor Escrow Agent. Such successor Escrow Agent shall be bound
\nby the terms and provisions of this Escrow Agreement. In the event that no such
\nagreement is reached within such fifteen (15) day period, the Escrow Agent shall
\ncontinue to hold the Escrow Materials then held by it and shall take no further
\nactions and shall have no further obligations hereunder except as required by
\nthe last sentence of this Section 14(a). The Escrow Agent named herein shall
\ncooperate with its successor in order to effectuate the transfer of its duties
\nto the successor Escrow Agent.<\/p>\n
14.2 Upon notice, Dragon Systems and Seagate may replace
\nEscrow Agent with a successor, who shall replace Escrow Agent and be bound by
\nall the terms and conditions of this Agreement.<\/p>\n
15. Fees and Expenses. Seagate agrees to pay the fees of the Escrow
\nAgent for its services hereunder during the term of this Agreement. Such fees
\nshall consist of periodical escrow maintenance charges, at Escrow Agent’s
\nstandard rates, and fees charged for carrying out its duties hereunder. In all
\nother cases, each party shall be responsible for its expenses incurred in
\nconnection with this Agreement.<\/p>\n
16. Indemnification. Seagate and Dragon Systems jointly and severally
\nagree to indemnify, [STRIKE-THROUGH TEXT] defend and hold harmless \\s\\ JKB \\s\\SL
\n\\s\\KY the Escrow Agent from and against any and all third party claims, suits
\nand other proceedings, and all judgments and other awards against the Escrow
\nAgent in connection therewith, in each case which may be imposed on, or incurred
\nby, or asserted against, the Escrow Agent in any way relating to, or arising out
\nof, this Agreement, or any action taken or omitted by the Escrow Agent under
\nthis Agreement, provided that neither Seagate nor Dragon Systems shall be liable
\nfor that portion of any such indemnification amount resulting from the Escrow
\nAgent’s gross negligence or willful misconduct or violation by the Escrow Agent
\nof any terms or provisions of this Escrow Agreement. This indemnity shall be
\nconditioned in each case on the Escrow Agent’s providing to Seagate and Dragon
\nSystems prompt written notice of the claim, allowing Seagate and Dragon Systems
\nto control the defense and settlement of the claim, and providing reasonable
\nassistance to Seagate and Dragon Systems in connection therewith.<\/p>\n
-5-<\/p>\n
28
\n IN WITNESS WHEREOF, the parties by their duly authorized
\nrepresentatives have executed this Agreement as of the date set forth above.<\/p>\n
SEAGATE TECHNOLOGY, INC.<\/p>\n
By: \\s\\ Stephen J. Luczo
\n —————————
\n Print Name: Stephen J. Luczo
\n —————————
\n Title: EVP Corporate Development
\n —————————<\/p>\n
DRAGON SYSTEMS, INC.<\/p>\n
By: \\s\\ James K. Baker
\n —————————
\n Print Name: James K. Baker
\n —————————
\n Title: CEO
\n —————————<\/p>\n
ESCROW AGENT:<\/p>\n
Data Securities International, Inc.
\n Name: Contract Administration
\n 9555 Chesapeake Drive. Suite 200
\n Address: San Diego, CA 92123<\/p>\n
By: \\s\\ Katherine C. Young
\n —————————
\n 10-1-96
\n Print Name: Katherine C. Young
\n —————————
\n Title: Senior Contracts Administrator
\n —————————<\/p>\n
-6-<\/p>\n
29
\n EXHIBIT 1<\/p>\n
ESCROW MATERIALS<\/p>\n
1. All source code (with all comments) in machine readable form.<\/p>\n
2. All tools necessary to build the Software, and all necessary
\n documentation with respect thereto.<\/p>\n
-7-<\/p>\n
EX-10.12<\/p>\n7<\/p>\nDISTRIBUTION AGREEMENT DATED 12\/15\/97<\/p>\n 1
\n Exhibit 10.12<\/p>\n
Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
[INGRAM MICRO LOGO]<\/p>\n
DISTRIBUTION AGREEMENT<\/p>\n
THIS DISTRIBUTION AGREEMENT (“Agreement”), is entered into this 15th
\nday of December, 1997, by and between INGRAM MICRO INC. (“Ingram”), a Delaware
\ncorporation, having its principal place of business at 1600 E. St. Andrew Place,
\nSanta Ana, California 92705, and DRAGON SYSTEMS INC. (“Vendor”), a Delaware
\ncorporation, having its principal place of business at 320 Nevada Street,
\nNewton, Massachusetts 02160. The parties desire to and hereby do enter into a
\ndistributor\/supplier relationship, the governing terms and mutual promises of
\nwhich are set out in this Agreement. This Agreement, upon the full execution
\nhereof, shall supersede in its entirety the mutual Start-up Agreement dated July
\n14, 1997.<\/p>\n
1. DISTRIBUTION RIGHTS<\/p>\n
1.1 Territory Vendor grants to Ingram, including its affiliates for resale, and
\nIngram accepts, the non-exclusive right to distribute in North America all
\ncomputer products produced and\/or offered by Vendor (“Product”) during the term
\nof this Agreement. Ingram shall have the right to purchase, sell and ship to any
\nreseller within the territory or to Ingram’s affiliate, or at Vendor’s option
\nIngram’s affiliate may purchase direct from Vendor.<\/p>\n
1.2 Product Vendor agrees to make available and to sell to Ingram such Product
\nas Ingram shall order from Vendor at the prices and subject to the terms set
\nforth in this Agreement. Ingram shall not be required to purchase any minimum
\namount or quantity of the Product.<\/p>\n
2. TERM AND TERMINATION<\/p>\n
2.1 Term The initial term of this Agreement is one (1) year. Thereafter the
\nAgreement will automatically renew for successive one (1) year terms, unless it
\nis earlier terminated.<\/p>\n
2.2 Termination<\/p>\n
(a) Either party may terminate this Agreement, with or without cause,
\nby giving thirty (30) days written notice to the other party.<\/p>\n
(b) Either party may immediately terminate this Agreement with written
\nnotice if the other party:<\/p>\n
2
\n (i) materially breaches any term of this Agreement and such
\nbreach continues for thirty (30) business days after written notification
\nthereof; or<\/p>\n
(ii) ceases to conduct business in the normal course, becomes
\ninsolvent, makes a general assignment for the benefit of creditors, suffers or
\npermits the appointment of a receiver for its business or assets, or avails
\nitself of or becomes subject to any proceeding under any Bankruptcy Act or any
\nother federal or state statute relating to insolvency or the protection of
\nrights of creditors; or<\/p>\n
(iii) attempts to assign or otherwise transfer its rights
\nhereunder unless both have agreed in writing to such assignment or transfer.<\/p>\n
3. INGRAM OBLIGATIONS<\/p>\n
3.1 Product Availability Ingram will list Product in its catalog(s) as
\nappropriate and endeavor to make such Product available to customers.<\/p>\n
3.2 Advertising Ingram will advertise and\/or promote Product in a commercially
\nreasonable manner and will transmit as reasonably necessary Product information
\nand promotional materials to its customers.<\/p>\n
3.3 Support Ingram will make its facilities reasonably available for Vendor and
\nwill assist in Product training and support. Ingram will provide reasonable,
\ngeneral Product technical assistance to its customers, and will direct all other
\ntechnical issues directly to Vendor.<\/p>\n
3.4 Administration<\/p>\n
(a) Upon request, Ingram will furnish Vendor with a valid tax exemption
\ncertificate.<\/p>\n
(b) Ingram will provide Vendor standard sales-out and inventory reports
\nvia its electronic Bulletin Board System.<\/p>\n
(c) Ingram may handle its customers’ Product returns by batching them
\nfor return to Vendor at regular intervals.<\/p>\n
4. VENDOR OBLIGATIONS<\/p>\n
4.1 Shipping\/Export<\/p>\n
(a) Vendor shall ship Product pursuant to Ingram purchase order(s)
\n(“P.O.”). Product shall be shipped F.O.B. Ingram’s designated warehouse with
\nrisk of<\/p>\n
-2-<\/p>\n
3
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
loss or damage to pass to Ingram upon delivery to the warehouse specified in
\nIngram’s P.O.<\/p>\n
(b) Ingram requires concurrent with the execution of this Agreement
\nExport Administration Regulations product classification and supporting
\ndocumentation: Certificate of Origin (General Use and\/or NAFTA), Export
\nCommodity Control Number’s; (ECCN’s), General License and\/or Individual
\nValidated License information and Schedule “B”\/Harmonized Numbers. This applies
\nwhen distribution rights granted under Section 1.1 are outside the United States
\nfor the initial Product\/s and when additions or changes to these Products
\noccurs.<\/p>\n
4.2 Invoicing For each Product shipment to Ingram, Vendor shall issue to Ingram
\nan invoice showing Ingram’s order number, the Product part number, description,
\nprice and any discount. At least monthly, Vendor shall provide Ingram with a
\ncurrent statement of account, listing all invoices outstanding and any payments
\nmade and credits given since the date of the previous statement.<\/p>\n
4.3 Product Availability Vendor agrees to maintain sufficient Product inventory
\nto fill Ingram’s orders. If a shortage of any Product exists, Vendor agrees to
\nallocate its available inventory of such Product to Ingram in proportion to
\nIngram’s percentage of all of Vendor’s customer orders for such Product during
\nthe previous sixty (60) days.<\/p>\n
4.4 Product Marketing Vendor will clearly mark each unit of Product with the
\nProduct name and computer compatibility. Such packaging will also bear a
\nmachine-readable bar code identifier scannable in standard Uniform Product Code
\n(UPC) format. The bar code must identify the Product as specified by the Uniform
\nCode Council (UCC). If the Vendor or Ingram customers’ require serial number
\ntracking the serial number must be clearly marked and bar coded on the outside
\nof the individual selling unit. The bar code shall fully comply with all
\nconditions regarding standard product labeling set forth in Exhibit B in the
\nthen-current Ingram Guide to Bar Code: The Product Label. Vendor may be assessed
\na reasonable per unit charge for all Product not in conformance herewith.<\/p>\n
4.5 TechNotes Vendor will within thirty (30) days of execution of this Agreement
\nsign the CIS\/ Manufacture Product Information Library – TechNotes and Content
\nDistribution Agreements as shown in Exhibit C and provide the required product
\ninformation in the designated template format.<\/p>\n
4.6 Support [**], Vendor shall support Product and any reasonable Ingram efforts
\nto sell Product. Vendor shall also provide to Ingram, its employees, and its<\/p>\n
-3-<\/p>\n
4
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
customers reasonable amounts of sales literature, advertising materials, and
\ntraining and support in Product sales, during Vendor’s regular business hours.<\/p>\n
4.7 New Product Vendor shall endeavor to notify Ingram at least thirty (30) days
\nbefore the date any new Product is introduced. Vendor shall make such Product
\navailable for distribution by Ingram no later than the date it is first offered
\nfor sale in the marketplace.<\/p>\n
4.8 Insurance Vendor shall carry insurance coverage for product
\nliability\/completed operations with minimum limits of [**]. Within ten (10) days
\nof full execution of this Agreement, Vendor shall provide Ingram with a
\nCertificate of Insurance. This Certificate of Insurance must include: (i) a
\nbroad form endorsement naming Ingram as an additional insured, and (ii) a
\nmandatory thirty (30) day notice to Ingram of insurance cancellation.<\/p>\n
4.9 Warranties\/Certification<\/p>\n
(a) General Warranty Vendor represents and warrants that (i) it has
\ngood transferable title to the Products, (ii) the Product will perform in
\nconformity with specifications and documentation supplied by Vendor, (iii) to
\nthe best of Vendor’s knowledge, the Product or its use does not infringe any
\npatents, copyrights, trademarks, trade secrets, or any other intellectual
\nproperty rights, (iv) to the best of Vendor’s knowledge, there are no suits or
\nproceedings pending or threatened which allege any infringement of such
\nproprietary rights other than described in Exhibit G, and (v) the Product sales
\nto Ingram do not in any way constitute violations of any law, ordinance, rule or
\nregulation in the distribution territory.<\/p>\n
(b) Warranty Vendor hereby represents and warrants that any Product
\noffered for distribution does not contain any obscene, defamatory or libelous
\nmatter or violate any right of publicity or privacy.<\/p>\n
(c) End-User Warranty Vendor shall provide a warranty statement with
\nProduct for end user benefit. This warranty shall commence upon Product delivery
\nto end-user. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
\nTO THE WARRANTIES OF MERCHANTABIITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
\nMADE BY VENDOR WITH RESPECT TO THE PRODUCT. INGRAM SHALL NOT EXTEND ANY
\nADDITIONAL WARRANTIES TO ANY RESELLERS OR END-USERS OF THE PRODUCT. IN NO EVENT
\nWILL INGRAM BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER INCIDENTAL OR
\nCONSEQUENTIAL DAMAGES, EVEN IF INGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF
\nSUCH DAMAGES. VENDOR SHALL IN NO EVENT BE LIABLE<\/p>\n
-4-<\/p>\n
5
\nFOR ANY DAMAGES RESULTING FROM LOSS OF DATA, PROFITS OR USE OF EQUIPMENT, OR FOR
\nANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
\nWITH THE USE OR PERFORMANCE OF THE LICENSED PROGRAM.<\/p>\n
IT IS ALSO UNDERSTOOD BY BOTH PARTIES TO THIS AGREEMENT THAT SPEECH
\nRECOGNITION IS INHERENTLY A STATISTICAL PROCESS; THAT SPEECH RECOGNITION ERRORS
\nARE INHERENT IN THE PROCESS OF SPEECH RECOGNITION; THAT SPEECH RECOGNITION
\nAPPLICATIONS AND USAGE MUST BE DESIGNED TO ALLOW FOR SUCH ERRORS IN THE SPEECH
\nRECOGNITION PROCESS.<\/p>\n
(d) Millennium Compliance Warranty Vendor warrants and represents that
\nthe Product will properly (a) record, store, process, calculate or present
\ncalendar dates falling on and after (and if applicable, spans of time including)
\nJanuary 1, 2000 as a result of the occurrence, or use of data consisting of,
\nsuch dates and (b) calculate any information dependent on or relating to dates
\non or after January 1, 2000 in the same manner, and with the same functionality,
\ndata integrity and performance, as such Product records, stores, processes,
\ncalculates and presents calendar dates on or before December 31, 1999, or
\ninformation dependent on or relating to such dates.<\/p>\n
(e) EU Warranty Vendor further warrants and represents for Products
\ndistributed to the European Union (“EU”) that the Products will be accepted
\nunder all EU directives, regulations and the EU country’s legislation.<\/p>\n
(f) Made in America Certification Vendor by the execution of this
\nAgreement certifies that it will not label any of its products as being “Made in
\nAmerica,” “Made in U.S.A.,” or with similar wording, unless all components or
\nelements of such Product is in fact made in the United States of America. Vendor
\nfurther agrees to defend, indemnify and hold harmless from and against any and
\nall claims, demands, liabilities, penalties, damages, judgments or expenses
\n(including attorney’s fees and court costs) arising out of or resulting in any
\nway from Product that does not conform to the Certification.<\/p>\n
5. PRICING<\/p>\n
5.1 Ingram Pricing The suggested retail price and any Ingram discount for
\nProduct is set out in Exhibit D. Vendor may modify Exhibit D with a minimum of
\nthirty (30) days advance written notice to Ingram. All Ingram orders for Product
\nwill be billed at the price in effect when the order is placed. Ingram shall
\nhave sole discretion as to selling price of Product to its customers.<\/p>\n
-5-<\/p>\n
6
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
5.2 Vendor Pricing Vendor agrees that [**]. If Vendor [**] Vendor’s other like
\ndistributors.<\/p>\n
5.3 International Pricing If Vendor [**] into that territory.<\/p>\n
5.4 Price Adjustments If Vendor [**], Vendor will [**] and its customers’
\nProduct inventory, including: (i) any Customer Product in-transit from\/to
\nIngram, (ii) any unshipped orders, and (iii) orders in-transit to Ingram [**].
\nIn the event that Vendor shall raise the list price of a Product, all orders for
\nsuch Product placed prior to the effective date of the price increase [**].
\nVendor shall provide Ingram with thirty (30) days advance notice of any price
\nincreases.<\/p>\n
5.5 Payment Terms Payment terms shall be [**]. Payment shall be deemed made on
\nthe payment postmark date. All checks will be sent via FedEx at Vendor’s
\nexpense.<\/p>\n
5.6 Right to Withhold Notwithstanding any other provision in this Agreement to
\nthe contrary, Ingram shall not be deemed in default if it withholds any specific
\namount to Vendor because of a legitimate dispute between the parties as to that
\nspecific amount pending the timely resolution of the disputed amount.<\/p>\n
5.7 Bulletin Board System (BBS) Ingram will provide the Detailed Vendor Buying
\nReport weekly by its electronic BBS. The standard reports will include sales by
\nzip code, state, product\/quantity sold and the detailed Vendor Buying Report.
\nIngram will provide reporting on a monthly basis on sell-through including SKU,
\ntitle, version, company, zip, number sold subject to a separate Proprietary
\nInformation Non-Disclosure Agreement attached hereto as Exhibit H.<\/p>\n
5.8 Rebate Vendor will provide a guaranteed [**], for reporting under Section
\n5.7. In addition, Vendor will offer Ingram a minimum [**], based on gross sales,
\nfor achieving sell-through quotas. The sell through quotas shall be mutually
\nagreed between both parties. The rebate will be paid by check within thirty (30)
\ndays after the quarter end. If no check is received within that period Ingram
\nshall deduct that amount from the Vendor’s next payment.<\/p>\n
6. MARKETING<\/p>\n
6.1 Trademarks Ingram may advertise and promote the Product and\/or Vendor, and
\nmay thereby use Vendor’s trademarks, service marks and trade names according to
\nVendor’s guidelines. Neither party shall acquire any rights in the trademarks,
\nservice marks or trade names of the other.<\/p>\n
-6-<\/p>\n
7
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
6.2 Advertising Vendor agrees to cooperate in Ingram’s or Ingram’s customers’
\nadvertising and promotion of Product and hereby grants Ingram a cooperative
\nadvertising allowance of [**] of Product invoice amount for such advertising
\nfeaturing Product and\/or Vendor. Ingram shall submit advertising to Vendor for
\nreview and approval prior to any initial release, and Vendor shall not
\nunreasonably withhold or delay such approval. Upon receipt of reasonable
\nevidence of such advertising expenditures, Vendor agrees to credit the amount
\nthereof against future Ingram purchases.<\/p>\n
6.3 Programs<\/p>\n
(a) Ingram may offer marketing programs to Vendor including but not
\nlimited to launch programs and reseller pass through opportunities. If Vendor
\nelects to participate, Vendor agrees to pay such funds as may be required for
\nthis purpose.<\/p>\n
(b) Vendor may be asked to prepay all marketing activities until a
\nmutually agreed upon sell through rate is achieved.<\/p>\n
(c) All marketing pass through activities are subject to Ingram\/buyer
\npre-approval.<\/p>\n
6.4 Support Product Vendor shall consign a reasonable amount of demonstration
\nProduct to aid Ingram in its support and promotion of Product. All such
\nconsigned Product will be returned to Vendor upon request.<\/p>\n
7. RETURNS<\/p>\n
7.1 Stock Balancing Notwithstanding anything herein to the contrary, Ingram may
\nreturn throughout the term any Products which are in their original packaging to
\nVendor [**]. Ingram will pay all freight charges for returned Products.<\/p>\n
7.2 Post-Term\/Termination [**], Ingram may return to Vendor any Product for
\ncredit against outstanding invoices, or if there are no outstanding invoices for
\na cash refund. Any credit or refund due Ingram for returned Product shall be
\nequal to the Product purchase price plus all freight charges incurred by Ingram
\nin returning the Product.<\/p>\n
7.3 Product Discontinuation Vendor shall give Ingram thirty (30) days’ advance
\nwritten notice of Product discontinuation. Ingram may return all such Product to<\/p>\n
-7-<\/p>\n
8
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
Vendor for full credit of Product purchase price plus all freight charges
\nincurred by Ingram in returning the Product, [**].<\/p>\n
7.4 Defective Product<\/p>\n
(a) Ingram may return any Product to Vendor that Ingram or its customer
\nfinds defective. Vendor shall immediately credit Ingram for the Product purchase
\nprice, plus all freight charges incurred by Ingram in returning the defective
\nProduct.<\/p>\n
(b) If any Product is recalled by Vendor because of defects, revisions
\nor upgrades, Ingram will, at Vendor’s request, provide reasonable assistance
\nwith the recall. Vendor will pay Ingram’s expenses in connection with such
\nrecall.<\/p>\n
8. INDEMNIFICATION<\/p>\n
8.1 Product Indemnity Vendor shall defend, indemnify, and hold harmless Ingram
\nfrom and against any claims, demands, liabilities, or expenses (including
\nattorney’s fees and costs) for any injury or damage, including, but not limited
\nto, any personal or bodily injury or property damage, arising out of or
\nresulting in any way from any defect in Products. This duty to indemnify Ingram
\nshall be in addition to the warranty obligations of Vendor.<\/p>\n
8.2 General Indemnity Each party shall indemnify, defend and hold the other
\nharmless from and against any and all claims, actions, damages, demands,
\nliabilities, costs and expenses, including reasonable attorney’s fees and
\nexpenses, resulting from any act or omission of the acting party or its
\nemployees under this Agreement, that causes or results in property damage,
\npersonal injury or death.<\/p>\n
8.3 Intellectual Property Rights Indemnity Vendor shall defend, indemnify and
\nhold Ingram, its resellers and their customers, harmless from and against all
\ndamages and costs incurred by any of them arising from the infringement of any
\npatent, copyright, trademark, trade secret or other proprietary right by reason
\nof the manufacture, sale, marketing, or use of Product.<\/p>\n
8.4 Product Infringement Upon threat of claim of infringement, Vendor may, at
\nits expense and option (i) procure the right to continue using any part of
\nProduct, (ii) replace the infringing Product with a non-infringing Product of
\nsimilar performance, or (iii) modify Product to make it non-infringing. If
\nVendor does not so act within ninety (90) days after such claim, Ingram may
\nreturn Product to Vendor for a full credit against future purchases or for a
\ncash refund, at Ingram’s option.<\/p>\n
-8-<\/p>\n
9
\n8.5 Multi-Media Indemnity Vendor shall defend, indemnify and hold Ingram, its
\nresellers and their customers, harmless from and against all damages and costs
\nincurred by any of them to the extent it is based upon a claim that the Product
\neither (i) violates a third party’s right of publicity and\/or right of privacy,
\nor (ii) contains any obscene, defamatory or libelous matter.<\/p>\n
8.6 European Indemnity For Products distributed to a country of the EU, the
\nVendor accepts full responsibility for, and will indemnify Ingram for, all costs
\nand damages arising from any non-compliance with any manufacturer-directed EU
\ndecree, regulation or directive.<\/p>\n
8.7 Millennium Compliance Indemnity Vendor agrees to indemnify and hold Ingram
\nand its shareholders, officers, directors, employees, agents, successors, and
\nassigns harmless from and against any and all claims, suits, actions,
\nliabilities, losses, costs, reasonable attorney’s fees, expenses, judgments or
\ndamages, whether ordinary, special or consequential, resulting from any third
\nparty claim made or suit brought against Ingram or such persons, to the extent
\nsuch results from Vendor’s breach of the warranty specified in Section 4.9(d).<\/p>\n
8.8 Limitation of Liability NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST
\nPROFITS OF BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED
\nIN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), AND
\nWHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.<\/p>\n
THIS LIMITATION IS IN NO WAY MEANT TO LIMIT VENDOR’S LIABILITY FOR
\nPERSONAL INJURY OR DEATH AS A RESULT OF A DEFECT IN ANY PRODUCT IN THOSE
\nJURISDICTIONS WHERE THE LAW DOES NOT ALLOW THIS LIMITATION.<\/p>\n
9. COMPLIANCE WITH FEDERAL LAWS AND REGULATIONS<\/p>\n
9.1 Executive Order 11246 Vendor agrees to include the Equal Employment
\nOpportunity Clause by reference in every contract, agreement and purchase order
\nentered into with subcontractors or suppliers as required by 41 CFR 60-1.4.<\/p>\n
9.2 Employer Information Report EEO-1 Written Affirmative Action Program Vendor
\nagrees that if the value of any contract or purchase order is fifty thousand
\ndollars ($50,000) or more and the Vendor has fifty (50) or more employees,
\nVendor will (i) file an EEO-1 report (Standard Form 100) and comply with and
\nfile such other compliance reports as may be required under Executive Order
\n11246, as amended, and Rules and Regulations adopted thereunder and (ii) will
\ndevelop a written<\/p>\n
-9-<\/p>\n
10
\naffirmative action compliance program for each of its establishments as required
\nby Title 41 CFR 60-1.40.<\/p>\n
9.3 Veterans Employment Clause Vendor agrees to abide by and comply with the
\nprovisions of the Affirmative Action Clause, 41 CFR 60-250.4.<\/p>\n
9.4 Employment of Handicapped Persons Vendor agrees that it will abide by and
\ncomply with the provisions of the Affirmative Action Clause, 41 CFR 60-741.4.<\/p>\n
9.5 Small Business Concerns and Small Business Concerns Owned and Controlled by
\nSocially and Economically Disadvantaged Individuals Where a government contract
\nis expected to exceed five hundred thousand dollars ($500,000), Vendor agrees to
\ncomply with all requirements of P.L. 95-507 and regulations promulgated
\nthereunder. Vendor shall comply with instructions contained in Exhibit E.<\/p>\n
9.6 Women-Owned Business Concerns Vendor shall comply with instructions
\ncontained in Exhibit F. Where a government contract is expected to exceed five
\nhundred thousand dollars ($500,000), Vendor agrees to comply with all
\nrequirements of Executive Order 12138 and all regulations promulgated
\nthereunder.<\/p>\n
10. GOVERNMENT PROGRAM<\/p>\n
10.1 Partnership America Vendor may, at its sole option, participate in Ingram’s
\ngovernment reseller program in which case the provisions of Exhibit F,
\nPartnership America, shall apply. A draft copy is provided solely for your
\ninformation and review.<\/p>\n
11. GENERAL PROVISIONS<\/p>\n
11.1 Notices Any notice which either party may desire to give the other party
\nmust be in writing and may be given by (i) personal delivery to an officer of
\nthe party, (ii) by mailing the same by registered or certified mail, return
\nreceipt requested, to the party to whom the party is directed at the address of
\nsuch party as set forth at the beginning of this Agreement, or such other
\naddress as the parties may hereinafter designate, and (iii) by facsimile or
\ntelex communication subsequently to be confirmed in writing pursuant to item
\n(ii) herein.<\/p>\n
11.2 Governing Law This Agreement shall be construed and enforced in accordance
\nwith the laws of the State of California, except that body of law concerning
\nconflicts of law. The United Nations Convention on Contracts for the
\nInternational Sale of Goods shall not apply to this Agreement.<\/p>\n
-10-<\/p>\n
11
\n11.3 Cooperation Each party agrees to execute and deliver such further documents
\nand to cooperate as may be necessary to implement and give effect to the
\nprovisions contained herein.<\/p>\n
11.4 Force Majeure Neither party shall be liable to the other for any delay or
\nfailure to perform which results from causes outside its reasonable control.<\/p>\n
11.5 Attorneys Fees In the event there is any dispute concerning the terms of
\nthis Agreement or the performance of any party hereto pursuant to the terms of
\nthis Agreement, and any party hereto retains counsel for the purpose of
\nenforcing any of the provisions of this Agreement or asserting the terms of this
\nAgreement in defense of any suit filed against said party, each party shall be
\nsolely responsible for its own costs and attorney’s fees incurred in connection
\nwith the dispute irrespective of whether or not a lawsuit is actually commenced
\nor prosecuted to conclusion.<\/p>\n
11.6 Export Regulations Ingram agrees by the purchase of Products to conform to,
\nand abide by, the export laws and regulations of the United States, including
\nbut not limited to, the Export Administration Act of 1979 as amended and its
\nimplementing regulations. Ingram shall include a statement in it’s standard
\nsales terms and conditions that any shipment of Product outside the United
\nStates will require a valid export license. Ingram further agrees to distribute
\nProduct in accordance with the territory as defined in Section 1.1. Whenever a
\nEU country is specified as Territory under Section 1.1, Territory shall include
\nall EU countries.<\/p>\n
12. AGREEMENT<\/p>\n
12.1 Counterparts This Agreement may be executed in one or more counterparts,
\neach of which shall be deemed an original, but all of which together shall
\nconstitute one and the same instrument.<\/p>\n
12.2 Section Headings Section headings in this Agreement are for convenience
\nonly, and shall not be used in construing the Agreement.<\/p>\n
12.3 Incorporation of all Exhibits Each and every exhibit referred to
\nhereinabove and attached hereto is hereby incorporated herein by reference as if
\nset forth herein in full.<\/p>\n
12.4 Severability A judicial determination that any provision of this Agreement
\nis invalid in whole or in part shall not affect the enforceability of those
\nprovisions found to be valid.<\/p>\n
-11-<\/p>\n
12
\n12.5 No Implied Waivers If either party fails to require performance of any duty
\nhereunder by the other party, such failure shall not affect its right to require
\nperformance of that or any other duty thereafter. The waiver by either party of
\na breach of any provision of this Agreement shall not be a waiver of the
\nprovision itself or a waiver of any breach thereafter, or a waiver of any other
\nprovision herein.<\/p>\n
12.6 Binding Effect\/Assignment This Agreement shall be binding upon and shall
\ninure to the benefit of the parties hereto, and their respective
\nrepresentatives, successors and permitted assigns. This Agreement shall not be
\nassignable by Vendor, without the express written consent of Ingram, which
\nconsent shall not be unreasonably withheld, except to a Person in which it has
\nmerged or which has otherwise succeeded to all or substantially all of such
\nparty’s business and assets to which this Agreement pertains and which has
\nassumed in writing or by operation of law its obligations under this Agreement.
\nAny attempted assignment in violation of this provision will be void.<\/p>\n
12.7 Survival Sections 5.5 (Payment Terms), 5.6 (Right to Withhold), 7.2
\n(Post-Term Termination) and 8. (Indemnification) shall survive the expiration or
\nearlier termination of this Agreement.<\/p>\n
12.8 Entirety This Agreement constitutes the entire agreement between the
\nparties regarding its subject matter. This Agreement supersedes any and all
\nprevious proposals, representations or statements, oral or written. Any previous
\nagreements between the parties pertaining to the subject matter of this
\nAgreement are expressly terminated. The terms and conditions of each party’s
\npurchase orders, invoices, acknowledgments\/confirmations or similar documents
\nshall not apply to any order under this Agreement, and any such terms and
\nconditions on any such document are objected to without need of further notice
\nor objection. Any modifications to this Agreement must be in writing and signed
\nby authorized representatives of both parties.<\/p>\n
-12-<\/p>\n
13
\n12.9 Authorized Representatives Either party’s authorized representative for
\nexecution of this Agreement or any amendment hereto shall be president, a
\npartner, or a duly authorized vice-president of their respective party. The
\nparties executing this Agreement warrant that they have the requisite authority
\nto do so.<\/p>\n
IN WITNESS WHEREOF, the parties hereunto have executed this Agreement.<\/p>\n
“Ingram” “Vendor”<\/p>\n
Ingram Micro Inc. Dragon Systems Inc.
\n1600 E. St. Andrew Place 320 Nevada Street
\nSanta Ana, California 92705 Newton, Massachusetts 02160<\/p>\n
By: \\s\\ VL Cotten By: \\s\\ Janet M. Baker
\n ————————– ——————————-<\/p>\n
Name: Name: Janet M. Baker
\n ———————— —————————–<\/p>\n
Victoria L. Cotten
\nTitle: Sr. Vice President Purchasing Title: President
\n ———————- —————————-<\/p>\n
Date: 1-15-98 Date: 31 Dec. 1997
\n ———————— —————————–<\/p>\n
* AGREEMENT MUST BE SIGNED BY PRESIDENT OR BY A DULY AUTHORIZED VICE PRESIDENT
\nOR PARTNER.<\/p>\n
-13-<\/p>\n
14
\nEXHIBITS:<\/p>\n
A – Vendor Routing Guide (if applicable)<\/p>\n
B – Guide to Bar Code: The Product Label<\/p>\n
C – TechNotes<\/p>\n
D – Product Price List<\/p>\n
E – Small And Disadvantaged Business Certification<\/p>\n
F – Partnership America<\/p>\n
G – Pending Litigation<\/p>\n
H – Proprietary Information Non-Disclosure Agreement<\/p>\n
-14-<\/p>\n
15
\n EXHIBIT A<\/p>\n
VENDOR ROUTING GUIDE<\/p>\n
Not Applicable
\n——————-
\n Attached
\n——————-<\/p>\n
16
\n EXHIBIT C Vendor #: ____________
\n PA #: ____________
\n Job #: __________<\/p>\n
CIS Manufacturer Product Information Library
\n TechNotes Agreement<\/p>\n
This agreement (“Agreement”) is made and entered into as of the ________ day of
\n_________,1997 between _________ (“Manufacturer Name”), with its principle place
\nof business at __________ (“Manufacturer Address”) and Ingram Micro Inc.
\n(“lngram”), with its principal place of business at 1600 E. St. Andrew Place,
\nSanta Ana, California 92705. By Manufacturer’s signature below, Manufacturer
\nagrees to participate in Ingram’s TechNotes program, according to and bound by
\nthe terms and conditions of this Agreement including those printed on the
\nreverse side of this page.<\/p>\n
PARTICIPATION DETAILS AND REQUIREMENTS:<\/p>\n
1. Ingram will distribute all information authored by the Manufacturer
\n under the terms and conditions of this Agreement.
\n2. Ingram will provide the Manufacturer with authoring screens for product
\n templates via the World Wide Web, (Manufacturer must have Internet
\n access and a frame compatible browser such as Netscaps(R) 2.0. or later
\n or Internet Explorer 3.0.)
\n3. Manufacturer must maintain the content in the Electronic Catalog by
\n either maintaining product templates via the authoring tools OR provide
\n Ingram with product information necessary for Ingram to complete the
\n TechNotes Templates.
\n4. Manufacturer agrees to identify a contact person: ____________________
\n _____________________________________________________________________.
\n (person who will be providing the content to Ingram and can authorize
\n its distribution)
\n Title:___________ Telephone #:_____________ FAX #: ___________________
\n Address:______________________________________ E-mail:________________<\/p>\n
5. 1997 SIGN UP\/ OPTIONAL TEMPLATE
\n PARTICIPATION FEE STANDARD BASE PRICE ENTRY SERVICE
\n —————– ——————- ————-
\n FREE if you sign
\n up in 1997 $1,000 Value $50 Per SKU (1-100 SKUs)
\n $35 Per SKU (101-150
\n SKUs)
\n and $25 Per SKU (150+ SKUs)<\/p>\n
vendor maintains 80% TechNotes completion rate within 60 days of
\n signing up for program. See details below.<\/p>\n
17
\nTEMPLATES WILL BE FILLED AND UPDATED BY (check one) \/ \/ Manufacturer
\n\/ \/ Ingram (must indicate $ amount below)<\/p>\n
Manufacturer will incur no sign up fees in 1997 if Manufacturer agrees to the
\nprogram prior to December 30, 1997. Fee will be completely waived in 1997 if
\nManufacturer completes 80% of eligible TechNotes within 60 days of signing
\ncontract and maintains an average completion rate of 80%. Manufacturer will be
\nnotified in the event participation level drops below 80% and will be given a
\ngrace period in which to complete necessary TechNotes.<\/p>\n
If Manufacturer selects the “Ingram” box above, Manufacturer agrees to have
\nIngram’s Technical Support department fill out TechNotes on Manufacturer’s
\nbehalf and agrees to pay the service fees indicated above and below. Billing
\nwill be done on a quarterly basis for TechNotes authored during the previous
\nquarter. Fees for the first 100 TechNotes will be $50 each. The next 50
\nTechNotes will be $35 each.
\nAdditional TechNotes will be $25 each.<\/p>\n
$ THERE ARE TWO TYPES OF AUTHORING FEES AVAILABLE TO MANUFACTURERS WHO HAVE
\nSELECTED TO HAVE INGRAM COMPLETE TECHNOTES: A ONE-TIME START-UP FEE AND A
\nQUARTERLY MAINTENANCE FEE. Start-up fees should be used to fund initial TechNote
\ncompletion for existing products. Quarterly Maintenance Fees are to be used for
\ncompletion of TechNotes for new products as they are released each quarter.
\nPlease indicate the amount Manufacturer agrees to pay for each of the following:
\nStart-up: $______ OR\/AND Quarterly Maintenance $ ______. MANUFACTURER WILL ONLY
\nBE BILLED FOR COMPLETED TECHNOTES UP TO THE MAXIMUM AMOUNT INDICATED. Payment is
\ndue within thirty (30) days of the invoice billing date. If payment is not
\nreceived within 30 days, Ingram has the right to deduct monies from
\nManufacturer’s invoices.<\/p>\n
\n\nMETHOD OF PAYMENT SOURCE OF FUNDS (Check One) ONLY FILL IN THIS SECTION IF INGRAM WILL FILL TECH\/NOTES<\/p>\n
\n
\n
\n(Check One)
\n______ Check Payable to ______ MDF ______ CO-OP
\nIngram Micro
\n______ Credit Memo (Request ______ In-House MDF ______ Other (MVP, Etc) _____ (Please Specify)
\nBuyer Approval)<\/p>\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Agreement will continue one year from the date above. Thereafter, the Agreement
\nwill be automatically renewed for additional one year periods, subject to the
\nright of either party to terminate at the end of the term by delivering written
\nnotice to the party at least thirty (30) days prior to the end of the period.
\nManufacturer may terminate this Agreement, with or without cause.<\/p>\n
Ingram reserves the right, at any time, to review and\/or edit information added
\nto the Manufacturer Product Information.<\/p>\n
18
\nLibrary’s Electronic Catalog without notice, and to refuse or cancel
\nparticipation for any reason at any time.<\/p>\n
[3 arrows] THE FOLLOWING INFORMATION IS VERY CRITICAL. PLEASE COMPLETE!
\n[2 arrows] PLEASE INDICATE ALL VENDOR NUMBERS ASSOCIATED WITH THIS MANUFACTURER:
\n____________________________________________
\n[1 arrow] WHO IS THE BUYER __________________________ EXT. _______ AND MARKETING
\nMANAGER ____________________________________ EXT._____________
\n Return completed agreement to marketing manger or buyer.<\/p>\n
19
\n CIS\/MANUFACTURER PRODUCT INFORMATION LIBRARY CONTENT DISTRIBUTION AGREEMENT<\/p>\n
The agreement “Agreement” is made and entered into as of the ____day of
\n__________1997 (The “Commencement Date”) between Ingram Micro Inc., a Delaware
\ncorporation (“Ingram”), and ________________________________(“Manufacturer”), a
\n_______________________________ corporation.<\/p>\n
The parties agree as follows:<\/p>\n
1. DELIVERY AND LICENSE. Manufacturer agrees to provide Ingram data and
\ninformation regarding Manufacturer’s products and services (collectively
\n“Information”) for distribution by Ingram through its information distribution
\nservices which may be updated from time to time (hereinafter referred to as the
\n“Manufacturers Product Information Library” or “MPIL”), including, but not
\nlimited to, distribution via the World Wide Web, Fax, CD-ROM, Floppy disk, and
\nother electronic media. Manufacturer hereby grants Ingram a non-exclusive
\nworldwide license to market, license, distribute, display, perform, transmit and
\npromote the information through the MPIL. Manufacturer agrees to deliver the
\ninformation to Ingram in the manner and format set forth in the MPIL Policies
\nand Procedure Manual (“Procedures”). Manufacturer agrees that it is both
\nnecessary and of mutual benefit to the parties that the Information be as error
\nfree as is commercially feasible.<\/p>\n
2. USE. Both parties agree that the MPIL (and Manufacturer’s Information
\ntherein) will be made available to users which have registered with Ingram to
\nuse the MPIL. Manufacturer acknowledges that the Information will be made
\navailable to such users worldwide via the World Wide Web or other methods of
\ndistribution. <\/p>\n
3. INFORMATION WARRANTIES. Manufacturer hereby represents and warrants that the
\nInformation (i) will not infringe on or violate any copyright, patent or any
\nother proprietary right of any third party, and (ii) will not contain any
\ncontent, materials or services which violate any applicable law, regulation or
\nthird party right, and (iii) contains no computer virus or similar program or
\ndata.<\/p>\n
4. INGRAM OPERATING RESPONSIBILITIES. Ingram will maintain and implement such
\nfacilities, equipment, programming and data communications network and any other
\ncombination of hardware and software as are necessary to offer and provide MPIL.
\nIngram shall not be responsible for screening, editing, or monitoring the
\ninformation prior to its distribution by MPIL.<\/p>\n
5. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
\nTO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
\nDAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
\nDAMAGES), ARISING FROM THE USE OR INABILITY TO USE THE MPIL OR THE INFORMATION,
\nOR ANY OTHER PROVISIONS OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,<\/p>\n
20
\nLOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.<\/p>\n
6. NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
\nNEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPUED, REGARDING THE MPIL OR THE
\nINFORMATION, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
\nPARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
\nCOURSE OF PERFORMANCE.<\/p>\n
7. INDEMNITY. Either party will defend, indemnify, save and hold harmless the
\nother party and the officers, directors, agents, affiliates, distributors,
\nfranchisees and employees of the other party from any and all third party
\nclaims, demands, liabilities, cost or expenses, including reasonable attorney’s
\nfees (“Liabilities”), resulting from the indemnifying party’s material breach of
\nany duty, representation, or warranty in this Agreement, except where
\nLiabilities result from the gross negligence or knowing and willful misconduct
\nof the other party.<\/p>\n
8. LAW. The validity, construction, and performance of this Agreement will be
\ngoverned by the substantive law of the State of California, not including its
\nlaw on conflicts of laws. If any provision of this Agreement is held by a court
\nof competent jurisdiction to be illegal, invalid, unenforceable, or otherwise
\ncontrary to law, the remaining provisions of this Agreement shall remain in full
\nforce and effect.<\/p>\n
9. INDEPENDENT CONTRACTORS. The parties hereto hereby agree that in the
\nperformance of their respective obligations hereunder, they are, and shall be
\nindependent contractors, and not agents of each other.<\/p>\n
10. WAIVER. The failure of either party to enforce or to exercise, at any time
\nor for any period of time, any term of or any right arising pursuant to this
\nAgreement does not constitute, and shall not be construed as, a waiver of such
\nterm or right, and shall in no way affect that party’s right later to enforce or
\nexercise it.<\/p>\n
11. CONFIDENTIAL INFORMATION. Each party acknowledges that Confidential
\nInformation may be disclosed to the other party during the course of this
\nAgreement. Each party agrees that it shall take reasonable steps, at lease
\nsubstantially equivalent to the steps it takes to protect its own proprietary
\ninformation, during the period this Agreement is in effect, and for a period of
\nthree (3) years following expiration or termination of this Agreement, to
\nprevent the duplication or disclosure of Confidential Information, other than by
\nor of its employees or agents who must have access to the Confidential
\nInformation to perform such party’s obligations hereunder, who shall each agree
\nto comply with this Section 11. Nor shall there be “Confidential Information”
\nfor purposes of this Agreement, any information relating to or disclosed in the
\ncourse of the Agreement, which is or should be reasonably understood to be
\nconfidential or proprietary to the disclosing party, including, but not limited
\nto, the material terms of this Agreement, technical processes and formulas, and<\/p>\n
21
\nsource codes, sales, projections and marketing data.<\/p>\n
12. NOTICES. All notices or other communications required to be given hereunder
\nshall be in writing and delivered either personally or by mail or overnight
\ncourier to the parties at the address provided by each party below, unless such
\naddress has been changed and notice of such change has been delivered in
\naccordance with this provision.<\/p>\n
13. ENTIRE AGREEMENT. The provisions of this Agreement or other agreements
\nauthorizing Ingram to distribute manufacturer’s information constitute the
\nentire Agreement between the subject matter hereof, except other related
\nagreements referenced herein. No amendment, modification, or waiver of any
\nprovision of this Agreement shall be effective unless it is set forth in a
\nwriting that refers to the Agreement and provisions so affected and is executed
\nby authorized representatives of both parties.<\/p>\n
——————————————————————————–<\/p>\n
AGREED AS OF THE COMMENCEMENT DATE STATED ABOVE.<\/p>\n
“MANUFACTURER”<\/p>\n
(Company Name)_________________________________________________________________
\n(Mailing Address)______________________________________________________________
\n(City, State, Zip)_____________________________________________________________<\/p>\n
By: _________________________________________________________________ (print)
\n_____________________________________________________________________ (sign)
\nTitle:_________________________________________________________________________<\/p>\n
“INGRAM”<\/p>\n
Ingram Micro Inc.
\n1600 E. St. Andrew Place
\nSanta Ana, California 92705<\/p>\n
By: _________________________________________________________________ (print)
\n_____________________________________________________________________ (sign)
\nTitle:___________________________________________________________ Ext,_________
\n(must be signed by marketing manager or buyer)<\/p>\n
22
\n EXHIBIT D<\/p>\n
PRODUCT PRICE LIST<\/p>\n
The prices for the Products offered under this Agreement shall be (check one):<\/p>\n
___________ As shown on Vendor’s price list dated ________________.<\/p>\n
___________ As shown below.<\/p>\n
\n\nProduct List Price Discount
\n——- ———- ——–<\/p>\n
\n
\n<\/p>\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
23
\n EXHIBIT E<\/p>\n
BUSINESS SIZE AND CLASSIFICATION
\n CERTIFICATION<\/p>\n
Contact Name:__________________________________________________________________
\nCompany:_______________________________________________________________________
\nAddress:_______________________________________________________________________
\nCity, State & Zip:_____________________________________________________________
\n(Please correct your address if it is incorrect or incomplete)<\/p>\n
In order for INGRAM MICRO INC. to comply with federal and state guidelines, we
\nmust obtain certain information about our suppliers. This information will be
\nrequested on an annual basis only. Therefore, please complete the basic
\ninformation requested below.<\/p>\n
Please complete, sign and return this certification to the address or fax below
\nat your earliest convenience. FAILURE TO PROVIDE THIS INFORMATION, MAY RESULT IN
\nYOUR COMPANY BEING REMOVED FROM OUR VENDOR LIST.<\/p>\n
Thank you in advance for helping us in out efforts to maintain accurate records,
\nwhich will in return facilitate an on-going relationship with your company.<\/p>\n
\n\n
\n
\n
\nReturn this form by mail to: Ingram Micro Inc. OR FAX to: (714) 566-1767
\n Attn: Government Division
\n PO Box 25125
\n Santa Ana, CA 92799-5125
\n——————————————————————————————————————-<\/p>\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Indicate the category which appropriately describes your business: (Refer to the
\nreverse of this form for category definitions.)<\/p>\n
1. Business Size:
\n \/ \/ Small Business \/ \/ Large Business<\/p>\n
2. Business Classification (if applicable):
\n \/ \/ Disadvantaged Business \/ \/ Women-owned Business
\n \/ \/ Minority Business<\/p>\n
3. Business Status:
\n Corporation: \/ \/ Yes \/ \/ No<\/p>\n
Taxpayer ID No. (TIN) # _ _ – _ _ _ _ _ _ _<\/p>\n
24
\nOR Social Security # _ _ _ – _ _ – _ _ _ _<\/p>\n
(if individual)<\/p>\n
The above information is certified true and correct on ___________ day of
\n_______________________ , 19 ______ by:<\/p>\n
__________________________________ ___________________________________
\nAuthorized Signature Title<\/p>\n
__________________________________ ___________________________________
\nName (print or type) Phone Number<\/p>\n
25<\/p>\n
\n\nBUSINESS SIZE<\/p>\n
\n
\nSMALL A business concern that, including domestic and
\n foreign affiliates is independently owned and
\n operated, not dominant in the field of operation in
\n which it is bidding on Government contracts, and
\n qualifies as a small business under the criteria and
\n size standards set forth in Title 13 of the Code of
\n Federal Regulations (CFR), Part 121.<\/p>\nLARGE The business concern exceeds the small business size
\n code standards established by the Small Business
\n Administration as set forth in Title 13 of the Code of
\n Federal Regulations (CFR), Part 121.<\/p>\n
BUSINESS CLASSIFICATION<\/p>\n
SMALL DISADVANTAGED A small business concern that is at least 51% owned
\n by one or more socially and economically
\n disadvantaged individuals (or a publicly owned
\n business having at least 51% of its stock
\n unconditionally owned by one or more socially or
\n economically disadvantaged individuals) and whose
\n management an daily business operations are
\n controlled by one or more of such individuals.<\/p>\n
WOMEN-OWNED A business concern that is at least 51% owned,
\n controlled and operated by a woman or women.<\/p>\n
MINORITY LARGE BUSINESS A concern which meets the criteria and definition of
\n ‘Disadvantaged’ business, but which is not a small
\n business by the SBA’s size standards.<\/p>\n
FOREIGN BUSINESS More than 50% of production or services must be
\n performed outside of the United States or its
\n possessions.<\/p>\n
NONPROFIT BUSINESS Any organization not conducted or maintained
\n for the purpose of making profit. Included in this
\n category are sheltered workshops, universities, colleges
\n and local, state and federal governments.<\/p>\n
BUSINESS STATUS<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
26<\/p>\n
\n\n
\n
\nCORPORATION A business entity that is registered with a state in the
\n United States as a corporation, including non-profit
\n corporations, but excluding professional corporations.<\/p>\nOTHER DATA Enter Federal Employer ID number or social Security
\n number, whichever is applicable.<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
27
\n EXHIBIT F<\/p>\n
PARTNERSHIP AMERICA(SM) PROGRAM ADDENDUM<\/p>\n
THIS PARTNERSHIP AMERICA(sm) PROGRAM ADDENDUM (“Addendum”) is made and entered
\ninto this _________________ day of __________________________ 199____________ by
\nand between INGRAM MICRO INC., a Delaware corporation (“Ingram”) and
\n________________________________________(“Vendor”) a ________________________
\ncorporation (state of incorporation).<\/p>\n
RECITALS<\/p>\n
A. On or about 199 , Ingram and Vendor entered into a Distribution
\n Agreement (“Distribution Agreement”), whereby Ingram was granted the
\n right to distribute in the U.S., all microcomputer products
\n manufactured, produced and\/or offered by Vendor (“Vendor Products”).<\/p>\n
B. Ingram and Vendor now desire to sell and distribute Vendor Products,
\n through resellers and system integrators, to federal, state and local
\n governments and their various agencies and departments (“Government”)
\n in accordance with the terms and conditions of this Addendum.<\/p>\n
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
\nacknowledged, and in consideration of the mutual covenants and promises
\ncontained herein, the parties agree as follows:<\/p>\n
1. PARTNERSHIP AMERICA(SM) PROGRAM Vendor hereby grants to
\n Ingram, and Ingram hereby accepts, the non-exclusive right to
\n provide product and services to resellers and system
\n integrators in connection with Ingram’s sale and distribution
\n of Vendor Product(s) to the Government in support of specific
\n government contract opportunities.<\/p>\n
2. VENDOR OBLIGATIONS<\/p>\n
2.1. PRODUCT NOTIFICATION Vendor shall notify Ingram of
\n any new Vendor Product(s), or any major revision of a
\n Vendor Product(s), and shall make such Vendor
\n Product(s) available for distribution by Ingram no
\n later than the date of first introduction into the
\n Government marketplace.<\/p>\n
2.2. FIRM FIXED PRICING Upon request, Vendor shall provide
\n “Firm Fixed Pricing” which shall guarantee the
\n pricing of the Vendor Product(s) for the effective
\n term of a specific Government contract. Vendor shall
\n give Ingram thirty (30) days advance written notice
\n of any Vendor Product(s) being discontinued.<\/p>\n
28
\n 2.3. REPRESENTATIONS AND CERTIFICATIONS Vendor understands
\n that due to the nature of Government bidding, Vendor
\n may be required to enter into a procurement specific
\n nondisclosure agreement or make certain
\n representations and certifications before any Vendor
\n Product(s) are sold or distributed into the
\n Government marketplace. In addition, Vendor agrees to
\n provide Ingram with an annual statement of
\n representations and certifications.<\/p>\n
3. INGRAM OBLIGATIONS<\/p>\n
3.1. GOVERNMENT SALE SPECIALISTS Ingram shall maintain a
\n separate government sales office, which shall include
\n sales specialists with an understanding of Government
\n regulations and Government contract terms and
\n conditions, to support resellers and system
\n integrators in the Government marketplace.<\/p>\n
3.2 CONFIGURATION Ingram shall maintain a configuration
\n facility for system integration and testing in
\n support of Government specific contracts and
\n opportunities for resellers.<\/p>\n
3.3. REPORTS Ingram agrees to make available to Vendor,
\n within ten (10) days after the close of each month,
\n via an electronic bulletin board system, a
\n point-of-sale report, by zip code, of Vendor Products
\n sold or distributed to resellers for Government
\n specific contracts. Vendor shall provide Ingram with
\n a list of individuals authorized to receive such
\n reports.<\/p>\n
4. PRICING The price and applicable discount for all Vendor
\n Products sold through the Partnership America(sm) Program is
\n set forth in Exhibit “A” attached hereto. The pricing and
\n discounts for Vendor Products set forth therein shall only
\n apply to Vendor Products sold through the Partnership
\n America(sm) Program into the Government marketplace. Ingram
\n will, in its sole discretion, determine the sale price to
\n resellers and system integrators for all Vendor Products. All
\n Vendor Product pricing and discounts set forth pursuant to
\n this Section shall not apply to, amend or affect the pricing
\n and discounts set forth in connection with any Vendor Products
\n sold and distributed pursuant to the Distribution Agreement.
\n Vendor understands and agrees that for certain Government
\n proposals\/quotes, which specify a significant quantity of
\n Vendor Products, Vendor shall provide program specific pricing
\n that will include additional discounts to those set forth in
\n Exhibit “A”.<\/p>\n
5. TERMINATION Either Vendor or Ingram may terminate this
\n Addendum, with or without cause, by giving the other ninety
\n (90) days written notice. Termination of this Addendum shall
\n not result in the termination of the Distribution Agreement.
\n Termination of this<\/p>\n
29
\n Addendum shall not affect the terms and conditions of any
\n Letter of Supply, issued by Vendor pursuant to Subsection 2.2.
\n In the event this Addendum is terminated, the rights of the
\n parties shall be determined under the terms and conditions of
\n the Distribution Agreement.<\/p>\n
6. DISTRIBUTION AGREEMENT TERMS AND CONDITIONS Except as
\n otherwise provided pursuant to this Addendum, all terms and
\n conditions of the Distribution Agreement shall apply to the
\n Partnership America(sm) Program.<\/p>\n
——————————————————————————–<\/p>\n
30
\n AMENDMENT<\/p>\n
March 10, 1998<\/p>\n
Ms. Victoria L. Cotten
\nSr. Vice President Purchasing
\nIngram Micro Inc.
\n1600 E. St. Andrew Place
\nSanta Ana, California 92705<\/p>\n
Dear Ms. Cotten:<\/p>\n
In light of the training and special use requirements of Dragon
\nNaturallySpeaking(TM), Deluxe Edition and other high-end products, we are now
\nrequiring Certification of all our Resellers who resell our Deluxe Edition.
\nDistributors may not sell such product to any Reseller who does not have this
\nCertification. Therefore, the following provision amends the December 15, 1997
\nAgreement between DRAGON and Ingram Micro Inc. and is to be inserted as
\nParagraph 3.5 in the Agreement.<\/p>\n
3.5 “Reseller Certification. Commencing on March 1, 1998, DRAGON requires that
\nall its Distributors ensure that their resellers procure a Certification Number
\nfrom DRAGON that allows the reseller to sell Dragon NaturallySpeaking(TM),
\nDeluxe Edition and other high-end DRAGON products. Resellers are specifically
\nprohibited from selling these products without this Certification. Distributor
\nmay not sell such products without first ascertaining that the reseller has
\nprocured such Certification.”<\/p>\n
Please sign below indicating your acknowledgment and acceptance of this
\nAmendment.<\/p>\n
Sincerely,<\/p>\n
\\s\\ S. Semenzato
\n———————————-
\nSteve Semenzato
\nDirector, North American Sales<\/p>\n
ACKNOWLEDGED AND ACCEPTED
\nBy: \\s\\ V.L. Cotten
\n ————————————
\nSignature: Victoria L. Cotten
\n —————————–
\nTitle: Sr. Vice President Purchasing
\n ———————————
\nDate: 3\/25\/98
\n ———————————-<\/p>\n
May 21, 1998<\/p>\n
31
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
AMENDMENT #2<\/p>\n
This Amendment Agreement effective as of the 21st day of May, 1998 (the
\n“Effective Date”) is between Ingram Micro Inc. ( hereinafter the “Distributor”)
\nand Dragon Systems, Inc. (hereinafter “Dragon.”)<\/p>\n
Notwithstanding any provision to the contrary, the Agreement between the Parties
\nis hereby amended as follows:<\/p>\n
Section 7.1 is hereby deleted in its entirety and the following Section 7.1 is
\ninserted in its place:<\/p>\n
SECTION 7.1 STOCK ROTATION AND BALANCING
\nDuring the term of this Agreement, DISTRIBUTOR may return the Product(s) which
\nrequire Dragon certification and are sold through VAR Resellers i.e. non-retail
\nto DRAGON for stock rotation up to [**] of the dollar value of DISTRIBUTOR’s
\nprior quarter’s product orders, subject to the following conditions: <\/p>\n
(a) DISTRIBUTOR must submit its request for stock rotation to DRAGON in
\n writing at least 14 days in advance of Distributor’s proposed stock
\n return date, indicating in the request the identity, quantity, order
\n and invoice dates of the Products to be returned;
\n(b) The version of the Products being returned must be the current version
\n or the version immediately preceding the then-current version;
\n(c) Distributor must submit to DRAGON concurrently with its rotation
\n request, an order for Products equal to or greater than the value of
\n the Products being returned
\n(d) Distributor may submit only one stock rotation request [**]
\n(e) Products returned for rotation may not have been shipped by DRAGON more
\n than [**] before the date of the request; and
\n(f) the Products being returned must be new, resaleable, and in their
\n original, unopened packaging
\n(g) return shipping will be paid for by DISTRIBUTOR.<\/p>\n
DRAGON, at its sole option, may amend or discontinue its stock rotation program.<\/p>\n
For all other Products, Distributor may return such to DRAGON throughout the
\nterm of this Agreement for full credit of the Product’s purchase price provided
\nsuch Products are in their original packaging. Distributor will pay all freight
\ncharges for returned Products.<\/p>\n
32
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
Section 7.3 is hereby deleted in its entirety and the following Section 7.3 is
\ninserted in its place:<\/p>\n
SECTION 7.3 DISCONTINUED PRODUCTS
\nWithin [**] after notice by DRAGON of product discontinuance, DISTRIBUTOR may
\nreturn for credit all units of such Product then held by DISTRIBUTOR in
\ninventory, purchased [**] preceding such notice and not committed to sale. The
\nreturn rights set forth in this section are in addition to the Stock Rotation
\nrights described above.<\/p>\n
Except as expressly modified herein, the Parties hereby ratify and affirm all
\nterms of the original agreement which terms and condition remain in full force
\nand effect as originally agreed to by the parties unless otherwise modified or
\namended in writing.<\/p>\n
IN WITNESS WHEREOF, each party has signed this Agreement on the day and year
\nwritten below effective as of the Effective Date.<\/p>\n
DRAGON SYSTEMS, INC. INGRAM MICRO, INC.<\/p>\n
By\/s\/ Janet M. Baker By: \/s\/ S. Semenzato
\n ————————— ————————————-<\/p>\n
Printed Name Janet M. Baker Printed Name S. Semenzato
\n —————– —————————-<\/p>\n
Title President Title Director
\n ———————– ———————————-<\/p>\n
Date 5\/21\/98 Date 5\/21\/98
\n ———————— ———————————— <\/p>\n
EX-10.13<\/p>\n8<\/p>\nDISTRIBUTION AGREEMENT DATED 4\/30\/98<\/p>\n 1
\n Exhibit 10.13<\/p>\n
Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
DISTRIBUTION AGREEMENT<\/p>\n
This Agreement (the “Agreement”) is made on the 30th day of April 1998.<\/p>\n
BETWEEN<\/p>\n
INGRAM EUROPEAN COORDINATION CENTER N.V.\/S.A. whose registered office is
\nsituated at Leuvensesteenweg 11, B-1932 Zaventem, Belgium, on behalf of its
\nIngram Micro affiliate companies in Europe (including but not limited to those
\ncompanies listed on the attached schedule 1) “Ingram”) and<\/p>\n
DRAGON SYSTEMS INC of 320 Nevada Street, Newton, MA 02160, USA (“Vendor”).<\/p>\n
IT IS AGREED:<\/p>\n
The terms and conditions of the distribution agreement between Ingram Micro Inc.
\nand Vendor dated 15th December 1997 (“Distribution Agreement”), attached hereto
\nas Exhibit A and made a part hereof by reference, are hereby agreed to and
\naccepted by Ingram and Vendor (as amended by the terms of this document) to
\ngovern any distribution relationship in Europe between Ingram and Vendor and the
\nterms of sale and purchase of Products between Ingram and Vendor.<\/p>\n
Amendments to the Distribution Agreement<\/p>\n
Clause 4: deliveries will be FOB Ingram’s designated European warehouse. This
\nshall be one location designated by Ingram. All other terms of clause 4 of the
\nDistribution Agreement remain unchanged.<\/p>\n
Additional Clauses<\/p>\n
The following provisions will be deemed to be added.<\/p>\n
This Agreement shall be construed and enforced in accordance with the laws of
\nthe State of California, except that body of law concerning conflicts of law.
\nThe United Nations Convention on Contracts for the International Sale of Goods
\nshall not apply to this agreement.<\/p>\n
[STRIKE-THROUGH TEXT] \\s\\JB<\/p>\n
2
\nVendor warrants, in addition to any other warranties, that the Products will
\ncomply with all health and safety regulations applying at the date of supply in
\nthe place where the Products are to be used by the end-user.<\/p>\n
The provisions of the attached Schedule 2 shall apply in addition to the other
\nterms and conditions of this Agreement in respect of all Products supplied by
\nVendor for the purposes of retail sale and\/or which are supplied by IM for the
\npurposes of retail sale to its customers.<\/p>\n
In the event of the Distribution Agreement containing provisions which are in
\nbreach of European Union Law, it is expressly agreed that such provisions will
\nbe void and non applicable.<\/p>\n
All product must be packaged and include sufficient components (or advice
\nthereon) as to make them suitable for retail sale.<\/p>\n
INGRAM EUROPEAN COORDINATION
\nCENTER N.V.\/S.A. DRAGON SYSTEMS INC.<\/p>\n
By: \\s\\ Karel Everaet By: \\s\\ Janet M. Baker
\n ——————————– —————————–
\nName: Karel EVERAET Name: Janet M. Baker
\n ——————————– —————————–
\nTitle: MANAGING DIRECTOR Title: President
\n ——————————– —————————–
\nDate: N30538 Date: 30 April 1998
\n ——————————– —————————–<\/p>\n
-2-<\/p>\n
3
\n SCHEDULE 1<\/p>\n
AUSTRIA:
\nIngram Micro Computer Ges.m.b.H
\nConcorde Business Park CS
\n2320 Schwechat
\nTel: +43 1706 17 77 10
\nFax: +43 1706 17 77 18
\nReg. No. 131945m
\nVAT No. ATU 38585401<\/p>\n
BELGIUM:
\nIngram Micro NV
\nLeuvensesteenweg 11
\n1932 Sint-Stevens-Woluwe
\nTel: +32 27 22 95 11
\nFax: +32 27 25 15 11
\nReg. No. HRB 456.077.106
\nVAT No. BE 425.077.655<\/p>\n
DENMARK:
\nIngram Micro A\/S
\nSlobemarken 15
\n2970 Hereholm
\nTel: +45 45 16 55 00
\nFax: +45 42 76 55 80
\nReg. No. 110598
\nVAT No. DK 70562618<\/p>\n
FINLAND:
\nIngram Micro OY
\nSinimlentle 10B
\n02631 Espoo
\nTel: +35 89 50 27 41
\nFax: +35 89 50 27 499
\nReg. No. 565-016
\nVAT No. 0690814\/0<\/p>\n
FRANCE:
\nIngram Micro S.A.R.L.
\nCarrefour de l’Europe
\n59812 Lesquin Cedex (Lille)
\nTel: +33 3 20 88 58 00
\nFax: +33 3 20 88 58 88
\nReg. No. R.C. LILLE 928127
\nVAT No. FR 50 344658117<\/p>\n
GERMANY:
\nIngram Micro Deutschland GmbH
\nHans-Pinsel-Strasse 9B
\n85540 Haar (Munchen)
\nTel: +49 89 46 18-0
\nFax: +49 89 46 18 1190
\nReg. No. HRB Munchen 115953
\nVAT No. DE 812261350<\/p>\n
ITALY:
\nIngram Micro SpA
\nVia Prima Maggio 2\/4
\n20068 Peschlera
\nBorromeo (Milano)
\nTel: +39 255 351
\nFax: +39 255-38401
\nReg. No. 1367714
\nVAT No. IT 10297220153<\/p>\n
THE NETHERLANDS:
\nIngram Micro BV
\nMississippidreef 87
\n3506 CE Ultrecht
\nTel: +31 30 285 1801
\nFax: +31 30 262 1330
\nReg. No. 85572
\nVAT No. NL 8047.55.486.BO1<\/p>\n
NORWAY:
\nIngram Micro AS
\nBrobeldnvelen 80
\n0583 Oslo
\nTel: +47 23 05 0000
\nFax: +47 23 05 0001
\nReg. No. 963054432
\nVAT No. NO 963054432<\/p>\n
SPAIN:
\nIngram Micro SA
\nC\/Sant Farran 52-68
\nPol. Ind. Almeda
\n08940 Cornella de Llobragat (Barcelona)
\nTel: +34 3 474 90 90
\nFax: +34 3 377 34 50
\nReg. No. A-75\/076395
\nVAT No. ESA78076395<\/p>\n
SWEDEN:
\nIngram Micro AB
\nKronborgsgrand 1
\n15487 Kista
\nTel: +46 8 477 15 00
\nFax: +45 8 703 93 48
\nReg. No. 556254\/8452
\nVAT No. SE 556254845201<\/p>\n
SWITZERLAND:
\nIngram Micro AG
\nHardlinstrasse 15
\n8957 Spreltenbach
\nTel: +41 56 4197 929
\nFax: +41 56 4197 977
\nReg. No. CH 400.3.017.0363
\nVAT no. CH 393154<\/p>\n
UNITED KINGDOM:
\nIngram Micro (UK) Ltd
\nGaramond Drive Wymbush
\nMilton Keynes MK8 8DF
\nBuckinghamshire, UK
\nTel: +44 1908 260 422
\nFax: +44 1908 265 526
\nReg. No. 1609968
\nVAT No. GB 440.3552.80<\/p>\n
-3-<\/p>\n
4
\n Confidential Materials omitted and filed separately
\n with the Securities and Exchange Commission. Asterisks
\n denote omissions.<\/p>\n
SCHEDULE 2<\/p>\n
RETAIL PRODUCTS<\/p>\n
1. Defective Products<\/p>\n
Vendor agrees to accept back for credit any Product returned to Ingram as
\ndefective by Ingram’s retail customers which has been returned to the retail
\ncustomer within [**] of the date of sale to the end user.<\/p>\n
2. Pass through MDF<\/p>\n
Vendor agrees to make a Marketing Development Fund available for Ingram and
\nIngram’s retail customers<\/p>\n
3. Promotional opportunities<\/p>\n
Vendor will from time to time subscribe to Ingram’s promotion opportunities.<\/p>\n
4. Merchandising services<\/p>\n
Vendor will from time to time subscribe to Ingram’s store Merchandising
\nproviding in-store focus.<\/p>\n
5. Product Requirements<\/p>\n
5.1 PRODUCT CHANGES; All version changes for any product must be
\n notified in writing to Ingram as soon as reasonably practical
\n with details of Ingram’s cost price and any RRP (or similar)
\n and in any event, at least 30 days before release date.<\/p>\n
5.2 NEW PRODUCTS; Vendor must inform Ingram as soon as reasonably
\n possible of all new product releases and supply to Ingram
\n sufficient samples free of charge, as Ingram need to supply to
\n its retail customers for advertising purposes or evaluation.
\n Vendor will also supply bar code information, product
\n dimensions (both outer case and contents) and key selling
\n points.<\/p>\n
5.3 BAR CODES All product must bear EAN-13\/UPC bar code number and
\n code readable on an external facing of the packaging of each
\n product, any change of code must be notified in writing to
\n Ingram 14 days prior to the date of any change.<\/p>\n
5.4. SHRINK WRAPPING If required by a particular retail customer of
\n Ingram’s products must be shrink-wrapped.<\/p>\n
5.5 SECURITY TAGGING All Products must be security tagged to a
\n standard agreed between Ingram, Vendor and its retail
\n customers.<\/p>\n
5.6 CERTIFICATE RATINGS All age restricted Products must display
\n the appropriate symbol on the Product and advice given to
\n Ingram’s Buyer in this respect<\/p>\n
-4-<\/p>\n
5
\n6. Dummy Boxes<\/p>\n
Reasonable quantities of dummy boxes will be supplied to Ingram from time to
\ntime as Ingram requests.<\/p>\n
7. Specifications<\/p>\n
-5-<\/p>\n
6
\n EXHIBIT A<\/p>\n
DISTRIBUTION AGREEMENT<\/p>\n
THIS DISTRIBUTION AGREEMENT (“Agreement”), is entered into this 15th
\nday of December, 1997, by and between INGRAM MICRO INC. (“Ingram”), a Delaware
\ncorporation, having its principal place of business at 1600 E. St. Andrew Place,
\nSanta Ana, California 92705, and DRAGON SYSTEMS INC. (“Vendor”), a Delaware
\ncorporation, having its principal place of business at 320 Nevada Street,
\nNewton, Massachusetts 02160. The parties desire to and hereby do enter into a
\ndistributor\/supplier relationship, the governing terms and mutual promises of
\nwhich are set out in this Agreement. This Agreement, upon the full execution
\nhereof, shall supersede in its entirety the mutual Start-up Agreement dated July
\n14, 1997.<\/p>\n
1. DISTRIBUTION RIGHTS<\/p>\n
1.1 Territory Vendor grants to Ingram, including its affiliates for
\nresale, and Ingram accepts, the non-exclusive right to distribute in North
\nAmerica all computer products produced and\/or offered by Vendor (“Product”)
\nduring the term of this Agreement. Ingram shall have the right to purchase, sell
\nand ship to any reseller within the territory or to Ingram’s affiliate, or at
\nVendor’s option Ingram’s affiliate may purchase direct from Vendor.<\/p>\n
1.2 Product Vendor agrees to make available and to sell to Ingram such
\nProduct as Ingram shall order from Vendor at the prices and subject to the terms
\nset forth in this Agreement. Ingram shall not be required to purchase any
\nminimum amount or quantity of the Product.<\/p>\n
2. TERM AND TERMINATION<\/p>\n
2.1 Term The initial term of this Agreement is one (1) year. Thereafter
\nthe Agreement will automatically renew for successive one (1) year terms, unless
\nit is earlier terminated.<\/p>\n
2.2 Termination<\/p>\n
(a) Either party may terminate this Agreement, with or without cause,
\nby giving thirty (30) days written notice to the other party.<\/p>\n
(b) Either party may immediately terminate this Agreement with written
\nnotice if the other party:<\/p>\n
(i) materially breaches any term of this Agreement and such breach
\ncontinues for thirty (30) business days after written notification thereof; or<\/p>\n
-6-<\/p>\n
7
\n (ii) ceases to conduct business in the normal course, becomes
\ninsolvent, makes a general assignment for the benefit of creditors, suffers or
\npermits the appointment of a receiver for its business or assets, or avails
\nitself of or becomes subject to any proceeding under any Bankruptcy Act or any
\nother federal or state statute relating to insolvency or the protection of
\nrights of creditors; or<\/p>\n
(iii) attempts to assign or otherwise transfer its rights hereunder
\nunless both have agreed in writing to such assignment or transfer.<\/p>\n
3. INGRAM OBLIGATIONS<\/p>\n
3.1 Product Availability Ingram will list Product in its catalog(s) as
\nappropriate and endeavor to make such Product available to customers.<\/p>\n
3.2 Advertising Ingram will advertise and\/or promote Product in a
\ncommercially reasonable manner and will transmit as reasonably necessary Product
\ninformation and promotional materials to its customers.<\/p>\n
3.3 Support Ingram will make its facilities reasonably available for
\nVendor and will assist in Product training and support. Ingram will provide
\nreasonable, general Product technical assistance to its customers, and will
\ndirect all other technical issues directly to Vendor.<\/p>\n
3.4 Administration<\/p>\n
(a) Upon request, Ingram will furnish Vendor with a valid tax
\nexemption certificate.<\/p>\n
(b) Ingram will provide Vendor standard sales-out and inventory
\nreports via its electronic Bulletin Board System.<\/p>\n
(c) Ingram may handle its customers’ Product returns by batching them
\nfor return to Vendor at regular intervals.<\/p>\n
4. VENDOR OBLIGATIONS<\/p>\n
4.1 Shipping\/Export<\/p>\n
(a) Vendor shall ship Product pursuant to Ingram purchase order(s)
\n(“P.O.”). Product shall be shipped F.O.B. Ingram’s designated warehouse with
\nrisk of loss or damage to pass to Ingram upon delivery to the warehouse
\nspecified in Ingram’s P.O.<\/p>\n
(b) Ingram requires concurrent with the execution of this Agreement
\nExport Administration Regulations product classification and supporting
\ndocumentation: Certificate of Origin (General Use and\/or NAFTA), Export
\nCommodity Control<\/p>\n
-7-<\/p>\n
8
\nNumber’s; (ECCN’s), General License and\/or Individual Validated License
\ninformation and Schedule “B”\/Harmonized Numbers. This applies when distribution
\nrights granted under Section 1.1 are outside the United States for the initial
\nProduct\/s and when additions or changes to these Products occurs.<\/p>\n
4.2 Invoicing For each Product shipment to Ingram, Vendor shall issue
\nto Ingram an invoice showing Ingram’s order number, the Product part number,
\ndescription, price and any discount. At least monthly, Vendor shall provide
\nIngram with a current statement of account, listing all invoices outstanding and
\nany payments made and credits given since the date of the previous statement.<\/p>\n
4.3 Product Availability Vendor agrees to maintain sufficient Product
\ninventory to fill Ingram’s orders. If a shortage of any Product exists, Vendor
\nagrees to allocate its available inventory of such Product to Ingram in
\nproportion to Ingram’s percentage of all of Vendor’s customer orders for such
\nProduct during the previous sixty (60) days.<\/p>\n
4.4 Product Marketing Vendor will clearly mark each unit of Product
\nwith the Product name and computer compatibility. Such packaging will also bear
\na machine-readable bar code identifier scannable in standard Uniform Product
\nCode (UPC) format. The bar code must identify the Product as specified by the
\nUniform Code Council (UCC). If the Vendor or Ingram customers’ require serial
\nnumber tracking the serial number must be clearly marked and bar coded on the
\noutside of the individual selling unit. The bar code shall fully comply with all
\nconditions regarding standard product labeling set forth in Exhibit B in the
\nthen-current Ingram Guide to Bar Code: The Product Label. Vendor may be assessed
\na reasonable per unit charge for all Product not in conformance herewith.<\/p>\n
4.5 TechNotes Vendor will within thirty (30) days of execution of this
\nAgreement sign the CIS\/ Manufacture Product Information Library – TechNotes and
\nContent Distribution Agreements as shown in Exhibit C and provide the required
\nproduct information in the designated template format.<\/p>\n
4.6 Support At no charge to Ingram, Vendor shall support Product and
\nany reasonable Ingram efforts to sell Product. Vendor shall also provide to
\nIngram, its employees, and its customers reasonable amounts of sales literature,
\nadvertising materials, and training and support in Product sales, during
\nVendor’s regular business hours.<\/p>\n
4.7 New Product Vendor shall endeavor to notify Ingram at least thirty
\n(30) days before the date any new Product is introduced. Vendor shall make such
\nProduct available for distribution by Ingram no later than the date it is first
\noffered for sale in the marketplace.<\/p>\n
-8-<\/p>\n
9
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
4.8 Insurance Vendor shall carry insurance coverage for product
\nliability\/completed operations with minimum limits of [**]. Within ten (10) days
\nof full execution of this Agreement, Vendor shall provide Ingram with a
\nCertificate of Insurance. This Certificate of Insurance must include: (i) a
\nbroad form endorsement naming Ingram as an additional insured, and (ii) a
\nmandatory thirty (30) day notice to Ingram of insurance cancellation.<\/p>\n
4.9 Warranties\/Certification<\/p>\n
(a) General Warranty Vendor represents and warrants that (i) it has
\ngood transferable title to the Products, (ii) the Product will perform in
\nconformity with specifications and documentation supplied by Vendor, (iii) to
\nthe best of Vendor’s knowledge, the Product or its use does not infringe any
\npatents, copyrights, trademarks, trade secrets, or any other intellectual
\nproperty rights, (iv) to the best of Vendor’s knowledge, there are no suits or
\nproceedings pending or threatened which allege any infringement of such
\nproprietary rights other than described in Exhibit G, and (v) the Product sales
\nto Ingram do not in any way constitute violations of any law, ordinance, rule or
\nregulation in the distribution territory.<\/p>\n
(b) Warranty Vendor hereby represents and warrants that any Product
\noffered for distribution does not contain any obscene, defamatory or libelous
\nmatter or violate any right of publicity or privacy.<\/p>\n
(c) End-User Warranty Vendor shall provide a warranty statement with
\nProduct for end user benefit. This warranty shall commence upon Product delivery
\nto end-user. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
\nTO THE WARRANTIES OF MERCHANTABIITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
\nMADE BY VENDOR WITH RESPECT TO THE PRODUCT. INGRAM SHALL NOT EXTEND ANY
\nADDITIONAL WARRANTIES TO ANY RESELLERS OR END-USERS OF THE PRODUCT. IN NO EVENT
\nWILL INGRAM BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER INCIDENTAL OR
\nCONSEQUENTIAL DAMAGES, EVEN IF INGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF
\nSUCH DAMAGES. VENDOR SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES RESULTING FROM
\nLOSS OF DATA, PROFITS OR USE OF EQUIPMENT, OR FOR ANY SPECIAL, INCIDENTAL OR
\nCONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR
\nPERFORMANCE OF THE LICENSED PROGRAM.<\/p>\n
IT IS ALSO UNDERSTOOD BY BOTH PARTIES TO THIS AGREEMENT THAT
\nSPEECH RECOGNITION IS INHERENTLY A STATISTICAL PROCESS; THAT SPEECH<\/p>\n
-9-<\/p>\n
10
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
RECOGNITION ERRORS ARE INHERENT IN THE PROCESS OF SPEECH RECOGNITION; THAT
\nSPEECH RECOGNITION APPLICATIONS AND USAGE MUST BE DESIGNED TO ALLOW FOR SUCH
\nERRORS IN THE SPEECH RECOGNITION PROCESS.<\/p>\n
(d) Millennium Compliance Warranty Vendor warrants and represents that
\nthe Product will properly (a) record, store, process, calculate or present
\ncalendar dates falling on and after (and if applicable, spans of time including)
\nJanuary 1, 2000 as a result of the occurrence, or use of data consisting of,
\nsuch dates and (b) calculate any information dependent on or relating to dates
\non or after January 1, 2000 in the same manner, and with the same functionality,
\ndata integrity and performance, as such Product records, stores, processes,
\ncalculates and presents calendar dates on or before December 31, 1999, or
\ninformation dependent on or relating to such dates.<\/p>\n
(e) EU Warranty Vendor further warrants and represents for Products
\ndistributed to the European Union (“EU”) that the Products will be accepted
\nunder all EU directives, regulations and the EU country’s legislation.<\/p>\n
(f) Made in America Certification Vendor by the execution of this
\nAgreement certifies that it will not label any of its products as being “Made in
\nAmerica,” “Made in U.S.A.,” or with similar wording, unless all components or
\nelements of such Product is in fact made in the United States of America. Vendor
\nfurther agrees to defend, indemnify and hold harmless from and against any and
\nall claims, demands, liabilities, penalties, damages, judgments or expenses
\n(including attorney’s fees and court costs) arising out of or resulting in any
\nway from Product that does not conform to the Certification.<\/p>\n
5. PRICING<\/p>\n
5.1 Ingram Pricing The suggested retail price and any Ingram discount
\nfor Product is set out in Exhibit D. Vendor may modify Exhibit D with a minimum
\nof thirty (30) days advance written notice to Ingram. All Ingram orders for
\nProduct will be billed at the price in effect when the order is placed. Ingram
\nshall have sole discretion as to selling price of Product to its customers.<\/p>\n
5.2 Vendor Pricing Vendor agrees that the [**]. If Vendor [**] also be
\nentitled to participate in and receive notice of the same [**].<\/p>\n
5.3 International Pricing If Vendor [**] into that territory.<\/p>\n
5.4 Price Adjustments If Vendor reduces any Product price, or offers
\nincreased discounts to any customers, Vendor will promptly credit Ingram for the
\ndifference between the original Product price and the reduced Product price for
\nIngram’s and its customers’ Product inventory, including: (i) any Customer
\nProduct in-transit from\/to<\/p>\n
-10-<\/p>\n
11
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
Ingram, (ii) any unshipped orders, and (iii) orders in-transit to Ingram on the
\nprice reduction or increased discount offer date. In the event that Vendor shall
\nraise the list price of a Product, all orders for such Product placed prior to
\nthe effective date of the price increase shall be invoiced at the lower price.
\nVendor shall provide Ingram with thirty (30) days advance notice of any price
\nincreases.<\/p>\n
5.5 Payment Terms Payment terms shall be [**]. Payment shall be deemed
\nmade on the payment postmark date. All checks will be sent via FedEx at Vendor’s
\nexpense.<\/p>\n
5.6 Right to Withhold Notwithstanding any other provision in this
\nAgreement to the contrary, Ingram shall not be deemed in default if it withholds
\nany specific amount to Vendor because of a legitimate dispute between the
\nparties as to that specific amount pending the timely resolution of the disputed
\namount.<\/p>\n
5.7 Bulletin Board System (BBS) Ingram will provide the Detailed
\nVendor Buying Report weekly by its electronic BBS. The standard reports will
\ninclude sales by zip code, state, product\/quantity sold and the detailed Vendor
\nBuying Report. Ingram will provide reporting on a monthly basis on sell-through
\nincluding SKU, title, version, company, zip, number sold subject to a separate
\nProprietary Information Non-Disclosure Agreement attached hereto as Exhibit H.<\/p>\n
5.8 Rebate Vendor will provide a guaranteed [**], based on gross
\nsales, for reporting under Section 5.7. In addition, Vendor will offer Ingram
\n[**], based on gross sales, for achieving sell-through quotas. The sell through
\nquotas shall be mutually agreed between both parties. The rebate will be paid by
\ncheck within thirty (30) days after the quarter end. If no check is received
\nwithin that period Ingram shall deduct that amount from the Vendor’s next
\npayment.<\/p>\n
6. MARKETING<\/p>\n
6.1 Trademarks Ingram may advertise and promote the Product and\/or
\nVendor, and may thereby use Vendor’s trademarks, service marks and trade names
\naccording to Vendor’s guidelines. Neither party shall acquire any rights in the
\ntrademarks, service marks or trade names of the other.<\/p>\n
6.2 Advertising Vendor agrees to cooperate in Ingram’s or Ingram’s
\ncustomers’ advertising and promotion of Product and hereby grants Ingram a
\ncooperative advertising allowance of [**] of Product invoice amount for such
\nadvertising featuring Product and\/or Vendor. Ingram shall submit advertising to
\nVendor for review and approval prior to any initial release, and Vendor shall
\nnot unreasonably withhold or delay such approval. Upon receipt of reasonable
\nevidence of such advertising expenditures, Vendor agrees to credit the amount
\nthereof against future Ingram purchases.<\/p>\n
-11-<\/p>\n
12
\n Confidential Materials omitted and filed separately with the
\n Securities and Exchange Commission. Asterisks denote omissions.<\/p>\n
6.3 Programs<\/p>\n
(a) Ingram may offer marketing programs to Vendor including but not
\nlimited to launch programs and reseller pass through opportunities. If Vendor
\nelects to participate, Vendor agrees to pay such funds as may be required for
\nthis purpose.<\/p>\n
(b) Vendor may be asked to prepay all marketing activities until a
\nmutually agreed upon sell through rate is achieved.<\/p>\n
(c) All marketing pass through activities are subject to Ingram\/buyer
\npre-approval.<\/p>\n
6.4 Support Product Vendor shall consign a reasonable amount of
\ndemonstration Product to aid Ingram in its support and promotion of Product. All
\nsuch consigned Product will be returned to Vendor upon request.<\/p>\n
7. RETURNS<\/p>\n
7.1 Stock Balancing Notwithstanding anything herein to the contrary,
\nIngram may return throughout the term any Products which are in their original
\npackaging to Vendor [**]. Ingram will pay all freight charges for returned
\nProducts.<\/p>\n
7.2 Post-Term\/Termination For [**] of this Agreement, Ingram may
\nreturn to Vendor any Product [**]. Any credit or refund due Ingram for returned
\nProduct shall be equal to the Product purchase price plus all freight charges
\nincurred by Ingram in returning the Product.<\/p>\n
7.3 Product Discontinuation Vendor shall give Ingram thirty (30) days’
\nadvance written notice of Product discontinuation. Ingram may return all such
\nProduct to Vendor for full credit of Product purchase price plus all freight
\ncharges incurred by Ingram in returning the Product, [**].<\/p>\n
7.4 Defective Product<\/p>\n
(a) Ingram may return any Product to Vendor that Ingram or its
\ncustomer finds defective. Vendor shall immediately credit Ingram for the Product
\npurchase price, plus all freight charges incurred by Ingram in returning the
\ndefective Product.<\/p>\n
(b) If any Product is recalled<\/p>\n
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